CHARLESTON – A Kanawha Circuit Court judge has ordered WorkForce West Virginia to stop seeking the return of alleged overpayments of unemployment claims paid in the wake of the COVID-19 pandemic.
In her order granting a writ of mandamus August 28, Judge Jennifer Bailey said the agency and Acting Commissioner Scott A. Adkins have incorrectly interpreted state code that says any such attempt to collect such overpayments are bound by a strict two-years statute of limitations of when the benefits were paid. In other words, benefits paid in August 2020 no longer were subject to such collection after August 2022.
One of the attorneys representing the plaintiffs praised the ruling, saying the attention now focuses on getting all of the money due the plaintiffs back.
“For years, WorkForce West Virginia collected overpayments in violation of West Virginia law,” Ben Salango told The West Virginia Record. “We are pleased that Judge Jennifer Bailey put a stop to this illegal practice. Next, we will ask the court to order Workforce West Virginia to pay back all of the money it collected illegally.”
According to court filings, petitioner Deborah Beheler Baldwin was placed on part-time status by Alliance Oncology in Charleston in March 2020 because of the COVID-19 pandemic. She says she was told to file claims with WorkForce for unemployment compensation benefits. She began receiving benefits in April 2020, and received them for about three months until she regained full-time employment status.
Baldwin did not hear from WorkForce for three years. But in the summer of 2023, she received letters saying there may have been an overpayment to her in 2020 and asked her to call. The final letter said it had been determined she was overpaid by $2,054 “in accordance with West Virginia Unemployment Compensation Law.”
She filed an appeal, and a hearing was set for September 5, 2023. A reply letter from WorkForce included language it claimed to be state law that actually misquoted state code by not noting such requests for overpayment are barred after two years.
“Respondents’ omission of the final sentence (regarding the two-year statute of limitations) … and fabricating language to substitute for the statute’s heading (which also mentioned limitation) are a repeated course of conduct,” Bailey wrote in her order. “The same misquotation of the statute appears elsewhere in the record of appeal responses mailed to another claimant whose overpayment determinations by respondents occurred more than two years following payment.
“Respondents’ omission of the final sentence … and fabricating language to substitute for the statute’s heading were intentional.”
Fellow petitioner Dennis Chambers had a similar situation. He worked for the Charleston Coliseum and Convention Center when COVID hit, and he needed to apply for unemployment benefits. He also was granted benefits in April 2020 and received them through September 2020.
He didn’t hear from WorkForce for nearly 2.5 years until he received a letter in January 2023 saying he owed $4,106 of overpayment. The letter warned of possible wage garnishment and federal tax refund interception for failure to pay, so Chambers paid the amount.
Other petitioners had similar stories.
X Linda Warner worked at a restaurant in South Charleston when the pandemic hit. She received benefits from WorkForce until May 2021. In April and May of 2023, she began receiving letters saying she owed thousands of dollars in overpayments. The letters listed five different amounts ranging from $8,240 to $404. She appealed, and a hearing was scheduled. But it was canceled just before it was to take place, but the letters continued to arrive in her mailbox. WorkForce ended up taking her federal tax refund of $341.
X Ashleah Murphy received benefits until August 2020. In August 2023, she received a letter saying she owed $3,346 in overpayment. She called when she received the letter, but she was told it was too late to appeal. She also was told it will be taken from her federal tax refund.
X Kelly Hardy received benefits until December 2020. In August and September of 2023, she began receiving letters from WorkForce claiming she owed thousands in overpayment as well.
X Brittany Gandee received benefits until November 2020. She received a voicemail from WorkForce in February 2024 regarding overpayment. When she called back, she was told the amount was $20, and they discussed taking it from her federal tax refund. She never received documents from WorkForce, but she did receive a letter from the U.S. Treasury weeks later telling her WorkForce was taking $2,945 from her tax refund.
In her order, Bailey notes the West Virginia Supreme Court of Appeals ruled in 2015 that WorkForce “is barred from collecting benefits paid to (the claimant) prior to two years before the date of the deputy’s decision” informing someone of an overpayment. That ruling recently was reiterated by the West Virginia Intermediate Court of Appeals.
While WorkForce claims the two-year period begins when the debt becomes final, Bailey says that interpretation is “inaccurate and imposes little if any time limitation” on WorkForce because collections don’t begin until WorkForce decides to issue a deputy decision.
Bailey says the two-year period begins to run when the benefits are paid to the claimant. She says the plaintiffs here have a “clear right to the relief sought.”
She ordered WorkForce to comply with their “mandatory, non-discretionary duty requiring that any collections of alleged overpayments resulting from error” happen within two years of WorkForce’s payment of the benefits at issue.
She also ordered WorkForce to suspend all collections of alleged overpayment resulting from error or sought by WorkForce in any process offering or involving an administrative hearing based on an overpayment determination of deputy decision dated more than two years following payment of the benefits, and she ordered WorkForce to preserve all data and documents regarding unemployment claims initiated since March 1, 2020, and to assemble all data regarding all claimants from whom WorkForce has engaged in collections based on an overpayment determination or deputy decision dated more than two years following payment for the period from March 1, 2020, to March 1, 2022.
The plaintiffs are being represented by Ben Salango of Salango Law in Charleston, by Patrick Salango of Salango Legal Firm in Charleston and by D. Christopher Hedges, David H. Carriger and L. Dante diTrapano of Calwell Luce diTrapano in Charleston. Adkins and Workforce West Virginia are being represented by Roberta F. Green and Caleb B. David of Shuman McCuskey Slicer in Charleston.
Kanawha Circuit Court case number 23-C-1049
